The High Court has found that the detention of a Nigerian asylum-seeker was illegal and the refusal of her application for residency was unfair.
Ms Bola Ojo is the first parent of an Irish-born child to challenge a deportation since the Supreme Court ruled, on January 23rd last, that non-Irish parents of an Irish-born child have no automatic right to live in Ireland.
She was arrested on January 27th last, after attending Waterford Garda station to register a new address. She was sent, with her six-week-old son, to the Women's Prison in Mountjoy.
Ms Ojo may now make a new application for residency on the grounds of being the mother of an Irish-born child. The court has ruled that she be given the opportunity to make submissions and be afforded "full and fair consideration". This does not guarantee her application will be successful, however.
Ms Ojo had previously been refused refugee status, and a deportation order was outstanding against her and her four-year-old daughter. However, following the birth of her son on December 15th last, she applied for residency as the mother of an Irish citizen.
She was informed this would take at least a year to process because of the backlog. She was arrested four days after the Supreme Court decision. Her lawyers challenged her detention on the basis that there were new circumstances - the birth of the child and the residency application - that superseded the original deportation order. These needed to be considered before there could be a deportation, and her detention was illegal. The court agreed.
However, the day this order was to be made final, the Department of Justice served a letter on Ms Ojo turning down her application for residency. She then challenged the legality of this decision. The court also found in her favour here. She had argued that the haste in which the decision was made deprived her of the right to seek legal advice in the light of the Supreme Court decision, and to make further submissions.
Ms Justice Finlay Geoghegan said that the timing and context of the refusal was important, and found that it did deprive Ms Ojo of the opportunity to make her case in the new circumstances. Quashing the decision, she also pointed out that the Minister for Justice, Mr McDowell, had given assurances that he would consider the judgment carefully before deciding on a policy in this area.
The director of the Refugee Council, Mr Peter O'Mahony, said that the judgment "demonstrates the need for careful guidelines and transparency in decision-making".
Denis Staunton, European Correspondent, writes: Speaking in Brussels, the Minister for Justice, Mr McDowell, put a positive construction on the ruling and welcomed what the judge had said.
"As I read the High Court decision, it is saying to me that I must consider each case on its merits, which is what I intended to do."
Mr McDowell said he would ask the Dáil for extra resources to deal with a backlog of 10,000 such cases.